AUSTRALIAN EDUCATION AMENDMENT (2019 MEASURES NO. 2) REGULATIONS 2019 (F2019L00981) EXPLANATORY STATEMENT

Commonwealth Numbered Regulations - Explanatory Statements

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AUSTRALIAN EDUCATION AMENDMENT (2019 MEASURES NO. 2) REGULATIONS 2019 (F2019L00981)

EXPLANATORY STATEMENT

Australian Education Act 2013

Australian Education Amendment (2019 Measures No. 2) Regulations 2019

Authority

Subsection 130(1) of the Australian Education Act 2013 (the Act) empowers the Governor-General to make regulations prescribing matters required or permitted by the Act to be prescribed by the regulations, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

Under subsection 33(3) of the Acts Interpretation Act 1901, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.

Legislative background

The Act is the principal legislation by which the Australian Government provides Commonwealth financial assistance for schools.

Under the Act, the Commonwealth provides financial assistance to States and Territories for distribution to approved authorities for government and non-government schools. Entities approved to receive Commonwealth financial assistance under the Act, including States and Territories in their capacity as approved authorities for government schools, must meet and maintain the conditions of approval outlined in the Act.

The Australian Education Regulation 2013 (the Principal Regulation) contains a number of provisions on matters concerning conditions and calculations of grants of Commonwealth financial assistance to States and Territories for schools, matters relevant to the effective and efficient administration of that assistance, and matters relevant to the provision of prescribed circumstances funding under the Act.

The Act and Principal Regulation commenced on 1 January 2014.

Purpose and operation of amendments

The purpose of the Australian Education Amendment (2019 Measures No. 2) Regulations 2019 (the Amendment Regulations) is to support the implementation of the Local Schools Community Fund that was announced in the 2019-20 Budget.

The Local Schools Community Fund will be established as a type of funding in prescribed circumstances under section 69A of the Act, which permits the Minister to determine an amount of financial assistance payable to a State or Territory for a school for a year, if the Minister is satisfied that prescribed circumstances apply in relation to the school for the year.

The Local Schools Community Fund will provide $30.2 million to schools in 2019-20 for equipment, upgrades or programs in schools. All schools that receive funding under the Act, including both government and non-government schools, are eligible to apply for the Local Schools Community Fund, in accordance with the Local Schools Community Fund Guidelines.

The Local Schools Community Fund will be administered in accordance with the Local Schools Community Fund Guidelines, which will set out eligibility and application requirements, and establish the conditions of funding. The Local Schools Community Fund Guidelines will be published on the website of the Department of Education (www.education.gov.au) after the Amendment Regulation is made.

Regulation Impact Statement (RIS)

The Office of Best Practice Regulation has agreed a Regulation Impact Statement is not required in relation to the Local Schools Community Fund (OBPR reference 25154).

Commencement

The Amendment Regulations commence on the day after it is registered on the Federal Register of Legislation.

Consultation

The Minister for Education wrote to all State and Territory Education Ministers, the Independent Schools Council of Australia, and the National Catholic Education Commission in June 2019 to formally consult on the Amendment Regulations and the draft Local Schools Community Fund Guidelines. All feedback received during the consultation period was considered prior to finalising the Amendment Regulations and in the further development of the Local Schools Community Fund Guidelines. Feedback focused on application and selection processes for funding, including identifying and seeking to minimise administrative burden.

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Australian Education Amendment (2019 Measures No. 2) Regulations 2019

The Australian Education Amendment (2019 Measures No. 2) Regulations 2019 (Amendment Regulations) is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview

The Australian Education Amendment (2019 Measures No. 2) Regulations 2019 (the Amendment Regulations) will support the implementation of the Local Schools Community Fund that was announced in the 2019-20 Budget.

Human rights implications

The Amendment Regulations engage the right to education under Article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), and Articles 28 and 29 of the Convention on the Rights of the Child (UNCRC).

Right to Education

The Amendment Regulations engage the right to education in Article 13 of the ICESCR. Article 13 recognises the right of everyone to education, which is directed towards the full development of the human personality and the sense of its dignity, and to enable all persons to participate effectively in society. The right to education for children is also found in Articles 28 and 29 of the UNCRC.

The Amendment Regulations promote the right to education by supporting the implementation of the Local Schools Community Fund, which will provide funding for schools for small scale projects to address the needs of schools at a local level, such as upgrading or replacing equipment, refurbishing facilities, or supporting specific programs for students. These projects will provide additional support to both government and non-government schools in delivering quality education and will help to ensure Australia can continue to have functioning and sufficiently supported educational institutions.

Conclusion

The Amendment Regulations are compatible with human rights because they promote the right to education under the ICESCR and the UNCRC.

Dan Tehan

Minister for Education

Detailed explanation of the Amendment Regulations provisions

Section 1 - Name of Amendment Regulations

This section provides that the title of the Amendment Regulations is the Australian Education Amendment (2019 Measures No. 2) Regulations 2019.

Section 2 - Commencement

This section provides for that the Amendment Regulations commence on the day after it is registered on the Federal Register of Legislation.

Section 3 - Authority

This section provides that the Amendment Regulations are made under the Australian Education Act 2013.

Section 4 - Schedules

This section provides that each instrument that is specified in a Schedule to the instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to the instrument has effect according to its terms.

Schedule 1 - Amendments

Item 1 amends subsection 4(1) of the Australian Education Regulation 2013 (the Principal Regulation) to include a definition of 'Local Schools Community Fund Guidelines' to mean the Local Schools Community Fund Guidelines issued by the Department, as in force from time to time. Item 1 inserts a note stating that the Local Schools Community Fund Guidelines could in 2019 be viewed on the Department's website.

Subsection 130(4) of the Act provides the legislative authority for the Local Schools Community Fund Guidelines to be incorporated into the Principal Regulation. In particular, subsection 130(4) provides that, despite the operation of subsection 14(2) of the Legislation Act, the Principal Regulation may provide in relation to a matter by applying, adopting or incorporating, with or without modification, any matter contained in any other instrument or other writing as in force or existing from time to time.

The incorporation of the Local Schools Community Fund Guidelines into the Principal Regulation applies from the time the Amendment Regulations commences, at which point the Guidelines themselves will have been made. The Local Schools Community Fund Guidelines will be made freely available on the Department of Education's website (http://www.education.gov.au) after the Amendment Regulation is made.

The purpose of the Local Schools Community Fund Guidelines is to set out the policy and processes for the administration of the Local Schools Community Fund.

Item 2 inserts new Part 6 of Schedule 1 to the Principal Regulation to provide for additional financial assistance for schools for 2019 and 2020 through the Local Schools Community Fund.

Section 69A of the Act provides for funding in prescribed circumstances. The Minister may, in writing, determine an amount of financial assistance that is payable under section 69A of the Act to a State or Territory for a school for a year if the Minister is satisfied that prescribed circumstances apply in relation to the school for that year.

New clause 23 of Schedule 1 sets out the circumstance for a school for 2019 or 2020 that the Minister must be satisfied apply in relation to the school, for this financial assistance under subsection 69A(1) of the Act for 2019 or 2020. The circumstance is that a project for the school has been approved by the Minister, in writing, for the year in accordance with the Local Schools Community Fund Guidelines.

New subclause 24 of Schedule 1 prescribes the total amounts determined by the Minister under subsection 69A(1) for the purposes of paragraph 69A(4)(a) of the Act for 2019 and 2020, taken together, in relation to these circumstances mentioned above, to be $30.2 million. As per paragraph 69A(4)(a) of the Act, the amounts that the Minister determines under subsection 69A(1) for 2019 and 2020, taken together, in relation to the circumstances mentioned above must not exceed this total.

New subclause 25(1) of Schedule 1 sets out, for the purposes of paragraph 78(2)(a) of the Act, that an approved authority for a school must spend, or commit to spend, financial assistance that is payable for the school under subsection 69A(1) of the Act, in the circumstances mentioned in clause 23 of Schedule 1:

* for the purposes of the project mentioned in paragraph 23 of Schedule 1; and

* in accordance with the Local Schools Community Fund Guidelines or as otherwise directed in writing by the Minister.

New subclause 25(2) provides that the financial assistance mentioned in subclause 25(1) must be spent, or committed to be spent, before 1 January 2021 or as otherwise directed in writing by the Minister.

New subclause 25(3) provides that for the purposes of paragraphs 25(1)(b) and 25(2)(b) of this clause, the Minister may give written directions to an approved authority.

New subclause 25(4) provides that any interest earned on financial assistance mentioned in subclause (1) must be spent, or committed to be spent, in the same way as the financial assistance.